Hunt v. Des Moines City Ry. Co.

• Citation: 188 Iowa 1068,177 N.W. 48
• Decision Date: 13 April 1920
• Docket Number: No. 33161.,33161.
• Parties: HUNT v. DES MOINES CITY RY. CO.
• Court: United States State Supreme Court of Iowa

188 Iowa 1068

177 N.W. 48

HUNT

v.DES MOINES CITY RY. CO.

No. 33161.

Supreme Court of Iowa.

April 13, 1920.

Appeal from Municipal Court of Des Moines; T. L. Sellers, Judge.

Action at law to recover damages for alleged personal injury. Trial to a jury and verdict for defendant. On motion of plaintiff, the verdict was set aside, and new trial granted. Defendant appeals. Affirmed.

Salinger, J., dissenting.W. H. McHenry and A. B. Howland, both of Des Moines, for appellant.

F. L. Groesbeck, of Des Moines, for appellee.

WEAVER, C. J.

The plaintiff alleges that, while a passenger on one of the defendant's street cars, and in attempting to alight therefrom, she fell or was thrown to the ground and injured by reason of the negligence of defendant's servant in failing to lower to its place the folding step provided for use of passengers in entering and leaving such vehicle. The defendant took issue upon plaintiff's petition, and the cause was submitted to the jury upon the testimony of witnesses and instructions given by the court, and, as already stated, there was a verdict for the defendant. The motion for new trial assigned as grounds therefor: (1) That the finding of the jury was not sustained by the evidence; (2) that the verdict was contrary to the instructions given by the court; (3) that the court erred in giving the jury each of the several instructions numbered 2, 3 1/2, 4, 5, 8, and 10. In ruling on the motion and ordering a new trial the court explained that its ruling was based solely on the exceptions taken to the instructions upon the subject of contributory negligence.

The abstract contains no part of the evidence offered in the case, but is confined to a statement of the issues; the requests for instructions to the jury made by the defendant and by plaintiff and refused by the court; the charge given by the court to the jury; the verdict; motion for new trial; resistance thereto; and the ruling from which the appeal is taken.

Referring first to the defendant's request for instructions, it may be said, without quoting them at large, that in so far as they related to the question of contributory negligence, they stated the rule to be that, if plaintiff by her own want of care contributed to the injury of which she complains, the verdict should be for the defendant.

The plaintiff's request for instructions contained a statement to the effect that, if she fell and was injured by reason of the negligence of the defendant in failing to lower the step, “and she was not guilty of any negligence on her part contributing to said injury, then your verdict should be for the plaintiff, otherwise for the defendant.”

Each of the several requests by the parties were refused by the court, which proceeded to charge the jury of its own motion. That part of the charge having relation to the question of negligence and contributory negligence, as affecting plaintiff's right to recover damages, is as follows:

Instruction No. 2.

“The burden of proof in this case is on the plaintiff, and before she can recover from the defendant she must establish by a preponderance of the evidence the following propositions:

First. That the defendant herein, through its employés, was guilty of negligence substantially as charged in plaintiff's petition.

Second. That such negligence was the proximate cause of the injury to plaintiff.

Third. That the plaintiff has sustained damages by reason of injury to her person, which was the proximate result of defendant's negligence.

Unless the plaintiff has sustained each and all of the foregoing propositions, 1 to 3, inclusive, by a preponderance of the evidence, you will proceed no further, but your verdict will be for the defendant; but if you find that plaintiff has established by a preponderance of the evidence each and all of the foregoing propositions, numbered 1 to 3, inclusive, you will then proceed to consider the amount of damage suffered by plaintiff.”

Instruction No. 3 1/2.

“You have been instructed that the plaintiff in this case cannot recover if she was guilty of contributory negligence which contributed in any degree to the injury of which she complains, but upon this question of contributory negligence you are instructed that the burden of proof in this case to show contributory negligence on the part of the plaintiff rests upon the defendant, and not upon the plaintiff.”

Instruction No. 4.

“It was the duty of the plaintiff to exercise ordinary care for her own safety in alighting from said car and to do what a reasonably prudent person would have done for her own protection at said time; and if you find from all of the evidence and the surrounding circumstances that a reasonably prudent person would have taken hold of the handholds or upright rods of said car in alighting, and if you further find that plaintiff failed to do so, and that said failure so to do contributed to and was the proximate cause of her injury, then you should return a verdict for defendant.”

Instruction No. 5.

“If you do not find by a preponderance of the evidence that plaintiff was free from any negligence, which in any manner contributed to her injury, then you need inquire no further, and your verdict should be for defendant.”

Instruction No. 8.

“If you find by a preponderance of the evidence that defendant opened the door of the car for the purpose of letting plaintiff go from the car or door, and the step at said door was not let down in its proper place until after plaintiff stepped out of the door, and as result thereof plaintiff was injured without any negligence on her part contributing thereto, your verdict should be for the plaintiff.”

Instruction No. 10.

“If you find by a preponderance of the evidence that defendant was guilty of negligence, as herein defined, and that such negligence was the proximate cause of plaintiff's injury, and you further find by a preponderance of the evidence that plaintiff was not guilty of any negligence which in any manner contributed to or was the proximate cause of said injury, then your verdict should be for the plaintiff, and you should proceed to determine the amount of damages she is entitled to recover of defendant, which in no event shall exceed the amount claimed by plaintiff, to wit, $1,000.”

[1] That these instructions were erroneous is conceded in argument to this court, but a reversal therefor is resisted on the theory that plaintiff by her requests to the court invited the error so committed and cannot be heard to complain of the prejudice, if any, resulting from such misdirection. That a party cannot successfully assign error upon the giving of an instruction which he has himself requested is a rule very frequently applied...